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The Illinois Appellate Court in John Crane, Inc. v. Admiral Ins. Co., 2013 IL App. (1st) 093240, held that in an asbestos bodily injury coverage case,
1. Any policy in which asbestos exposure, sickness, or disease occurred during the policy period is triggered; and
2. All triggered policies are jointly and severally liable to pay “all sums” up to their limits.
For more information on the March 5, 2013 decision, see http://www.policyholderinsurancelaw.com/blog/zurich-v-raymark-still-alive-well-illinois-%E2%80%94-whiskers-all
On June 4, 2013, the court in John Crane Inc. v. Allianz Underwriters Insurance Co., et al., 2013 IL App (1st) 093240-B, [enhanced version available to lexis.com subscribers], issued a new opinion in this case, following CNA's petition for a rehearing. Much of the June 4, 2013 opinion is the same as the March 5, 2013 opinion, although the court clarified some portions of its early opinion by adding the following paragraphs:
"In one of the appellees' petitions for rehearing, it is urged that our 'jointly and severally liable' holding is a misplaced notion of tort liability that has ‘no place in the proper interpretation’ of this insurance case. To the contrary, joint and several liability has been applied in numerous insurance cases and is most appropriate in this one . . . . Only triggered policies are jointly and severally liable for all sums that the insured becomes legally obligated to pay as a result of asbestos bodily injury claims. Obviously, policies that are not triggered pay nothing. Uninsured periods are irrelevant as only carriers providing policies for the period at issue will be liable. There are no credits for uninsured years. Policies that are triggered pay 'all sums' up to their limits . . . ."* * * * *"In its petition for rehearing, CNA argues that Crane has the burden to prove the specific dates on which the various policies at issue are triggered. While CNA appears to concede that the evidence proving some of those dates simply does not exist for every claim and that it might not be possible to pinpoint a date when an underlying plaintiff suffers from 'sickness,' it argues:
'Obviously, if a claimant is injured by exposure to [Crane's] asbestos - as must be the case since all of the relevant underlying claims involved judgments against [Crane]there must be a beginning and an end of exposure. There is no option. Likewise, if the claimant has a disease - as he must to recover a judgment - there must be a date of disease. Thus, these dates must be shown. (Emphasis in original.)'
While some of these suppositions may arguably be true, CNA does not cite any evidence or any case law supporting them. For the reasons described above, we are not persuaded by and reject CNA's argument on this issue."
* * * * *
The appellate court also denied the insurers' request for a "certificate of importance" pursuant to Ill. Sup. Ct. R. 316, which permits an Illinois appellate court to certify an appeal to the Illinois Supreme Court where "a case decided by it involves a question of such importance that it should be decided by the Supreme Court."
By Seth Lamden, Partner, Neal, Gerber & Eisenberg LLP
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